Private justice: How Hollywood money put a Brit behind bars

Anton Vickerman, 38-year old owner of the once popular link site surfthechannel.com (STC), was sentenced to four years in prison on Tuesday by a British judge. But the prosecutors sitting across the courtroom from him didn't work for the Crown—they were lawyers for the movie studio trade group Federation Against Copyright Theft (FACT).

FACT, not public officials in the UK, was the driving force behind Vickerman's prosecution. Indeed, FACT effectively took on the role of a private law enforcement agency. Private investigators hired by FACT first identified Vickerman as the administrator of STC and built the case against him. His assets were frozen at FACT's request by a government agency—which was itself funded by FACT. And when the UK's public prosecutors decided not to press charges against Vickerman at all, FACT initiated a criminal prosecution on its own dime.

This is a new development for anti-piracy efforts. Organizations like the MPAA, RIAA, IFPA, and FACT have long lobbied law enforcement officials to prosecute "rogue sites" and have provided them with information and logistical support to do so. But public prosecutors generally have the final say on who will be indicted. In the Vickerman case, the public prosecutors concluded that there wasn't enough evidence to merit prosecution. FACT disagreed and invoked what one lawyer told us is an "archaic right" for a private organization to bring criminal prosecutions against other private parties.

Vickerman posted a lengthy testimonial to his site after he was convicted. In it, he describes FACT as a lawless conspiracy to shut down his site for the benefit of competing video sites, and he portrays Judge Evans as an "imbecile" who didn't understand the legal issues in the case. While many of the accusations seem overwrought, Vickerman did include a cache of documents that came out during his trial. From them we can paint a clear picture of just how far one private party was allowed to go in its bid for justice.

FACT confirmed the authenticity of the court documents for us but declined to get into the specifics of Vickerman's account—arguing that his conviction by a jury of his peers speaks for itself.

Getting their man

Surfthechannel.com grew rapidly—so rapidly that it soon came to the attention of Hollywood. The site hosted no videos, but its meticulously organized collection of links made it popular with those seeking infringing content. And plenty of people were interested. At the site's peak in mid-2009, STC attracted hundreds of thousands of users per day, earning Vickerman up to £50,000 ($78,500) per month in advertising revenue.

FACT wanted to shutter the site, but first it had to find out who was running the thing. Vickerman had kept a low profile, registering the domain through an anonymizing service and purchasing server space offshore. Undeterred, FACT hired an investigator named Pascal Hetzscholdt to pose as a potential investor who lured Vickerman to a London hotel on July 10, 2008. While the two ate lunch, a surveillance team recorded the encounter from a nearby table. Investigators working for FACT then tracked Vickerman back to his home 250 miles north of London in Gateshead.

The contents of that lunch discussion are disputed. Vickerman insists that he "did not discuss anything whatsoever about movies, illegality, or other such matters." Hetzscholdt has a different recollection. In a report filed after the meeting, he stated that Vickerman discussed plans to "experiment with using the BitTorrent network as the infrastructure to offer popular current films through STC." The whole thing was recorded, so the truth should have been a simple matter to verify—but FACT says that no audio of the meeting exists, making it impossible to check Hetzscholdt's story. Vickerman suspects foul play.

"I am firmly of the belief that such an audio recording did exist but that it was 'disappeared' by FACT Ltd due to it containing nothing controversial," he wrote.

Enlarge/ Form seeking authorization under the Regulation of Investigatory Powers Act to conduct "directed surveillance" of Vickerman during the London hotel meeting. Contrary to FACT's claims, Vickerman was not in the business of selling counterfeit DVDs.

FACT soon discovered that the home Vickerman shared with his wife was for sale. So, two days after the London meeting, another FACT agent posed as a potential buyer in order to access the residence. The agent covertly recorded the home walk-through and filed a detailed report on the operation.

Meanwhile, FACT was busy collecting other information about Vickerman. The group asked the satellite provider BSkyB for information about the couple's satellite TV subscription, for instance. An investigator tailed Vickerman's wife Kelly on a day's errands. The Guardianreports that "other private eyes had already obtained detailed information about his bank accounts, cars, and telephone records." FACT was nothing if not thorough.

On August 18, 2008, Northumbria police raided the Vickermans' home. Vickerman says that FACT agents participated in the raid and that they were "clearly directing the police." A FACT spokesman declined to comment to us on this allegation, but court documents do indicate that FACT was heavily involved in planning the raid. FACT, for instance, hired the forensic investigator used in the case.

In an e-mail sent a week prior to the raid, FACT's Colin Tansley outlined a plan for FACT's investigators to take down STC and replace it with a seizure notice. Vickerman says this plan failed because FACT believed, inaccurately, that the STC servers were located inside Vickerman's house. (The servers were actually located in Sweden, beyond the reach of FACT and the Northumbria police.) When we asked, FACT again refused to comment on Vickerman's allegations.

During the search, Vickerman and his wife were both arrested. Vickerman told both police and FACT investigators that the STC site was, in his view, legal; it acted "as a search engine" and was exempt from liability, he said.

The Vickermans were soon released on bail, but the other shoe was about to drop. Their cash was about to be seized.

Enlarge/ Work order requesting forensic investigator to take down STC site and replace it with a FACT logo.

Asset freeze

Two weeks later, on September 1, investigator Alan Connolly from the Bedfordshire Trading Standards Financial Investigations Unit showed up at the Vickermans' home. He knocked on the front door and presented them with an "asset restraint order," which the unit had taken out at FACT's request. Vickerman claims that he and his wife were then barred from accessing any of their funds, aside from £125 per week, per person, to cover living expenses. As a result of the order, Vickerman says that he "started to default on my bills and rapidly started spiraling into severe financial problems."

The Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU) has a grandiose name but a strange history—and it's hardly the impartial agent of government justice its name might suggest. A statement on the agency's website explains that, in 2007, the "Bedfordshire Trading Standards Service was approached" by FACT and "offered a unique sponsorship opportunity" to create the Financial Investigation Unit. With FACT's generous support, the BTSFIU was soon able to focus on conducting piracy-related property confiscations.

Indeed, so deep is the partnership that, on the form used to request an asset confiscation, the agency states that "priority will be given to those referrals that involve cinematic piracy." Vickerman says he filed a Freedom of Information Act request that revealed that "BTSFIU had made 23 similar restraint order applications in 2008, all on behalf of FACT."

In a Tuesday interview, FACT spokesman Eddy Leviten brushed off any suggestion that the financial ties between FACT and the BTSFIU created a conflict of interest, however.

"The banking industry in the UK funds the check and credit bureau in the Metropolitan Police," he told us. "It's something that happens in the UK where private industry can fund specific units within law enforcement to take on a specific role. Those units still have to withstand the same scrutiny" as any other law enforcement agency. We e-mailed two BTSFIU agents seeking comment on the relationship but never got a response.

Unable to spend his own funds on legal representation, Vickerman borrowed money from his father to hire an attorney who challenged the asset freeze. According to Vickerman, "It turns out it is unlawful for BTS to act outside of Bedforshire County," so the asset freeze was cancelled about a month after it had been put into place.

And the news got even better for Vickerman. It soon emerged that the government had no interest in charging him with a crime. Indeed, the government wasn't even convinced he had committed one.

Enlarge/ The instructions of the BTSFIU asset confiscation form notes that priority is given to piracy cases.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

Judge Evans made a curious reference to the TV-Links case, saying that Vickerman "pressed on, knowing that TV-Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful."

But

Quote:

But a jury found Vickerman guilty of "conspiracy to defraud" (rather than of facilitating copyright infringement) and the judge pronounced sentence.

"Hey, you didn't violate UK law, but somehow I still have to uck up your life!"

A minor quibble, but there is no "UK Legal system". England and Wales has a legal system, Scotland has a separate Legal system, as does Northern Ireland. I dont think this would have been able to occur in Scotland where private Prosecutions I believe are almost unheard of

This sounds totally insane. This guy sets out to create a website that complies with all legal precedents and standards, believes he has done so, and so the judge denounces him specifically because he won't own up to his supposed wrongdoing?

There's so many things wrong with this case that I don't even know where to begin.

You demonstrate a complete absence of remorse[.] In the trial, you levelled criticism of virtually everyone involved in this investigation. You would not countenance, and it’s evident from your demeanor now that you still do not countenance, the idea that you were doing anything wrong.

Of course; if Vickerman believed himself to be in the right, why would he show remorse?

Quote:

I’m bound to say that in all the years I’ve worked in this court I have never encountered arrogance of the kind that you displayed during the trial...

Like making statement that strongly indicate judgement had already been passed, making the whole trial nothing more than a kangaroo court. I would say a star chamber, but the whole thing was (disturbingly) aboveboard.

Quote:

The vast majority of the material made available through that website infringed copyright.

Apparently about 5,500-ish of the 2,000,000-ish links were infringing. I'm no Stephen Hawking, but that seems to be about a quarter of a percent.

It's no wonder the guy lost, with a hostile judge and millions of industry dollars arrayed against him.

Of course, and I will throw out this caveat, Ars authors tend to be inveterately hostile to media organizations, and journalists are well known for taking quotes and information out of context.

Allowing private entities to prosecute is simply insane. The propensity for corruption is boundless.

There is a very very long history history of private prosecutions; one of their (supposed) advantages is that they reduce corruption by taking the monopoly on prosecuting crimes away from the state. I can sort of see this in theory - criminal laws are general and are for everyone, and if the DA won't prosecute the guy who stole my car, particularly if he won't do it for some political reason, why can't I do it myself? Laws are laws...

"His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material."

So before the crown believed they had a case, police were authorised to raid someone's home?

Quote:

"... The vast majority of the material made available through that website infringed copyright."

Nice call there by the judge - wasn't it 'at least 5.5 thousand of 2 million links?'

I'm not against going after people who break the law, but this case was mismanaged and forced through. That's why the crown prosecutor's didn't push it - with a comment about going after the violating sites themselves.

Now tell me, why can't FACT have just gone after him through civil courts, ie claim damages, etc. That just seems like a more legal and moral way to do things.

Oh right.. moral with these sorts of organisations. I withdraw my last comment.

The guy gets 4 years in prison for linking TV episodes; here a guy gets 30 months for killing 3 teenagers with his car. I see no justice being served, only corporate greed and bullying and corruption.

Was that the Aussie guy, drunk beyond recognition, already disqualified? Fucking, between the three of those teenagers they would have had around 200 years of living. And this scumbag only gets 30 months?

But I guess through linking to TV shows, that's pretty much mass genocide. 4 Years is pretty lenient ... /sarcasm

All we need is magic to appear and the world turns into Shadowrun...Corporations running everything and holding power above the state. Having to hack into the net to avoid data caps and tracking... good thing I spent a few years playing that RPG (I liked playing as a burnt out mage)

Most public prosecutors have to behave as model litigants — they're relying on public money and their actions put people behind bars. You WANT them behaving like model litigants. What's most concerning here is that you have a criminal prosecution where that has been completely removed. They're after an objective and will do anything to achieve it — including withholding documents, etc

As for comparing themselves to the RSPCA. I'm pretty confident the RSPCA is not driven by a profit motive (or at least its members aren't donating money to them out of self-interest). I think that's a pretty big difference.

Shouldn't this entire thing have crumbled at the point at which FACT illegally surveilled Vickerman, stalked him and his wife and gained access to his home under false pretenses? I mean, you'd think those would run quite counter to anything resembling proper procedure when engaged in by a private goddamn party.

The writing was on the wall when Anton Vickerman was being charged by a private firm vs the state. When Britain and the USA smooched and made up for past aggressions. Such as the fact the USA waited for two years untill England was bankrupted by the war before it jumped in the help fight the Germans. In the meantime the USA was playing both sides of the war, because they were also supplying Germany with machinery to run its war.FACT. Then to see the Prime Minister apologize to the people and explain why their wasn't any Weapons of Mass Destruction after getting involved with the USA in Iraq. England was bought out so easily. All it took was the USA promising the Coalition of the Willing that what ever percent you participate in the war with that will be your share(Money) you make, for the rebuilding of Iraq. The corruption in the USA is spreading like wildfire and the fact that a lot of countries in the EU are broke and need financial help, makes it that much easier for the USA to flex its muscle. Makes one wonder who the real enemy is, I thought the cold war ended a few years back.

1) Purchase your content, knowing that part of what you are paying is going to support media organizations like FACT and the MPAA, and their corruption of government on both sides of the pond.

2) Pirate your content, knowing that there are a lot of people not asking 6 - 7 figures per episode or 7 - 8 figures per movie who put in lots of hard work to create that content and should be paid for that.

1) Purchase your content, knowing that part of what you are paying is going to support media organizations like FACT and the MPAA, and their corruption of government on both sides of the pond.

2) Pirate your content, knowing that there are a lot of people not asking 6 - 7 figures per episode or 7 - 8 figures per movie who put in lots of hard work to create that content and should be paid for that.

3) Neither purchase nor pirate content. Make do without.

Actually you could just as easily have a 4th option: The library. As far as I know all monies for said libraries come from agencies not affiliated with the RIAA/MPAA. And if anything you could almost say the library is our trusted ally since they're getting beat up by those thugs as well.

And if you've not been to the library in some time? Well, don't you think it's long overdue?

Putting aside that the judge/jury made a bad decision here, and he was convicted for fraud, I actually think all copyright cases should be prosecuted by the rights holders - I dont want my tax dollars spent on protecting their failing business models.

When Britain and the USA smooched and made up for past aggressions. Such as the fact the USA waited for two years untill England was bankrupted by the war before it jumped in the help fight the Germans. In the meantime the USA was playing both sides of the war, because they were also supplying Germany with machinery to run its war.FACT.

Uh... Germany declared war on the US, the vast majority of US goods were sold to the UK, cash and carry and the Neutrality Patrol were ploys to support the British while maintain a facade of being "neutral". Also, Eagle Squadrons.

Wear your tin foil hat all you want, but don't try to rewrite history.

When Britain and the USA smooched and made up for past aggressions. Such as the fact the USA waited for two years untill England was bankrupted by the war before it jumped in the help fight the Germans. In the meantime the USA was playing both sides of the war, because they were also supplying Germany with machinery to run its war.FACT.

Uh... Germany declared war on the US, the vast majority of US goods were sold to the UK, cash and carry and the Neutrality Patrol were ploys to support the British while maintain a facade of being "neutral". Also, Eagle Squadrons.

Wear your tin foil hat all you want, but don't try to rewrite history.

I think except for the 'fact' that he said FACT and UK, his post was not related to the article in any way, shape, or form.

And yet we will do nothing as a people to stop this charade. Banks fuck up our economy, the US stamp around declaring their law more valid than our own law, and we do nothing. Next will be martial law to stop the small, pathetically feeble protests being put up.

As a people, WE are responsible for this farce being committed. You can rail against the judge, the government, all players involved in this stupidity; but in the end it stops at our door. WE allowed it. WE didn't stand up.

When martial law is declared, and your daughters are raped on their wedding night by the new ruling class, remember this day for you who took no action were responsible.

When Britain and the USA smooched and made up for past aggressions. Such as the fact the USA waited for two years untill England was bankrupted by the war before it jumped in the help fight the Germans. In the meantime the USA was playing both sides of the war, because they were also supplying Germany with machinery to run its war.FACT.

Uh... Germany declared war on the US, the vast majority of US goods were sold to the UK, cash and carry and the Neutrality Patrol were ploys to support the British while maintain a facade of being "neutral". Also, Eagle Squadrons.

Wear your tin foil hat all you want, but don't try to rewrite history.

We did fight two wars against Germany. While it may not have been his intent, Crushit may have been referring to World War One, where the United States was selling arms and materials to both sides.

Back on topic... is there any chance of an appeal for Vickerman? I didn't see any mention of the possibility in the article.

What possible reason do people have for defending this guy? He made a website with the sole purpose of linking to unauthorized copyrighted content, and slaps a bunch of ads on the page, effectively using content he has no right to in order to drive traffic to his site.

Sorry but ANYONE can aggregate links to unauthorized copies of other people's work and slap ads all over it. He's not some kind of brilliant innovator that anyone will miss.

What possible reason do people have for defending this guy? He made a website with the sole purpose of linking to unauthorized copyrighted content, and slaps a bunch of ads on the page, effectively using content he has no right to in order to drive traffic to his site.

Sorry but ANYONE can aggregate links to unauthorized copies of other people's work and slap ads all over it. He's not some kind of brilliant innovator that anyone will miss.

Yes the case went down in a shady way but in the end the shoe fits.

Reading comprehension isn't your strong suit, is it? If you had RTFA, you would have noted that approx. 5500 out of 2 million links on his site were alleged to link to unauthorized copyrighted content. That's around 0.275%.

Missing the point folks. The horned devils here aren't the uk or us legal systems, they're the corporate lawyers who can afford to 'manage' situations like these to desirable outcomes. The judge probably was an idiot but I'd love to know about the relative size / costs of defence and prosecution resources.

Of course, and I will throw out this caveat, Ars authors tend to be inveterately hostile to media organizations, and journalists are well known for taking quotes and information out of context.

In his (incredibly long and detailed) telling of the story, if even half of it is true, it shows a depth of corruption and disregard for the law that I wouldn't have thought possible. Even as poorly as the justice system works sometimes, this could never have happened in the US.